Highlights from the Eleventh Circuit court of appeals

A defendant may be eligible for a safety valve reduction for a drug offense when receiving a 2-point increase for possession of a gun but it will be difficult

March 25, 2013,


In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) ("safety valve") provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon "in connection with the offense." Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language "in connection with the offense." No definition or explanation was provided in the guidelines or the statutes. The court rejected the government's argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if "a weapon was possessed" and not "if a weapon was possessed in connection with the offense." A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a "difficult task" to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a "connection" with the drug offense depended on whether the firearm "facilitated or had the potential to facilitate" the drug offense. Under the facts of Carrillo's case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction "greased the wheels" for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.